Routines and formulae

Performative and enacting formulae

Wordings that perform the legal act they name, and why they are placed, not composed. Also called explicit performatives, enacting clauses or promulgation formulae.

Reference/All phraseology

Codified Austin (1962) Trosborg (1991) Joint Practical Guide (2015)

What it is

Most sentences in a legal text describe, permit or oblige. A performative formula does something else: it performs the act it names, so the wording is not a report of a declaration or an enactment but the declaring and enacting itself. Trosborg, working in Austin's speech act framework, gives the purest form of the declaration as "I/we (hereby) declare" followed by a proposition, and draws the consequence that sets this unit apart: a will written in the wrong formula is not a will at all.

The enacting formula is the case with the widest reach, an explicit performative that establishes the illocutionary force of an entire text; it stands where preamble turns into law. The Westminster formula, Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, carries the binomial advice and consent inside the performative, a pair of the kind binomials-and-doublets describes.

Routine formulae next door are also selected rather than composed, but usage warrants them and their force is social; here the warrant is an instrument, the force legal. Whether a text type admits an equivalent at all is terminology's ground; this record keeps the formula by which the genre constitutes itself.

Where the fixity comes from

The warrant is doubled, doctrine and instrument. The doctrine is constitutive: where the formula is the act, an amended formula is a different act or none. The instrument side splits between placement and wording. Guideline 7 of the Joint Practical Guide fixes the placement, the standard sequence of title, preamble, enacting terms and annexes where necessary; Guideline 7.3 sets the enacting terms apart as the legislative part. The wording is fixed one level deeper, in the model each legal order keeps for its own acts: every language version of an EU regulation prints its own version of the same adoption and closing formulas. For the wording to change, the order's way of enacting would have to change; no editor holds that pen.

Consequences for translation

These formulas are met in two situations that must not blur: making a language version of an instrument, and translating an instrument into a language that is not one of its versions.

  • In a language version the formula is found, not made. The Dutch text of a regulation opens the enacting terms with the formula every Dutch version prints; producing it is placement of a fixed form, not translation of the English.
  • The empty approximation tier is this record's claim, not an oversight. In an instrument there is nothing to approximate: the target legal order supplies its own formula, or the text is not that instrument. An informative translation of a foreign statute does not enact; the formula there is reported speech, and the unit is no longer at work.
  • The modal surface belongs to the version, not to the translator. The English closing formula of a regulation carries shall; the Dutch version prints present indicatives. A reviser who restores the modal is composing, and the force was never in the modal.
  • The formula marks where the preamble ends and the enacting terms begin, and cross-references hang on that boundary. In revision these lines are checked against the order's model text, not against the source, and a deviation is a finding.

Examples

EN>NL

  • Source: HAS ADOPTED THIS REGULATION:
  • Target: HEEFT DE VOLGENDE VERORDENING VASTGESTELD:
  • Comment: Commission Implementing Regulation (EU) 2026/124 of 14 January 2026, the line between preamble and Article 1 in the English and Dutch versions. Dutch inverts to verb-final and replaces this with a cataphoric de volgende. A translator composing from the English would write HEEFT DEZE VERORDENING VASTGESTELD, a wording no Dutch version prints; the formula is found in the version, not derived from the source.

DE>FR

  • Source: Die Bundesversammlung der Schweizerischen Eidgenossenschaft, gestützt auf die Artikel 95 Absatz 1, 97 Absatz 1, 122 Absatz 1 und 173 Absatz 2 der Bundesverfassung, nach Einsicht in die Botschaft des Bundesrates vom 15. September 2017, beschliesst:
  • Target: L'Assemblée fédérale de la Confédération suisse, vu les art. 95, al. 1, 97, al. 1, 122, al. 1, et 173, al. 2, de la Constitution, vu le message du Conseil fédéral du 15 septembre 2017, arrête:
  • Comment: The Swiss Data Protection Act of 25 September 2020, enacting preamble, German and French versions, both authentic. The performative verbs are not translations of each other: beschliesst resolves, arrête decrees. German separates legal basis from consultation, gestützt auf against nach Einsicht in; French opens both with vu. A translator composing from the German would write décide; the version prints arrête.

References

  • Austin, J. L. (1962). How to Do Things with Words. Oxford: Clarendon Press. Cited here through Trosborg (1991).
  • Trosborg, A. (1991). "An analysis of legal speech acts in English Contract Law. 'It is hereby performed'." Hermes 6, 65 to 90, at pp. 72 to 73.
  • Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation, 2015 edition. Luxembourg: Publications Office of the European Union. Guidelines 7 and 7.3.
  • Commission Implementing Regulation (EU) 2026/124 of 14 January 2026, adoption and closing formulae, English and Dutch language versions.
  • Bundesgesetz über den Datenschutz (Datenschutzgesetz, DSG) vom 25. September 2020, SR 235.1; Loi fédérale sur la protection des données (LPD) du 25 septembre 2020, RS 235.1, enacting preamble, German and French versions, fedlex.admin.ch.
  • Safety of Rwanda (Asylum and Immigration) Act 2024, enacting formula, as enacted, legislation.gov.uk.

How this reaches the target text

The techniques below carry this unit into the target text. The first group places a fixed target form that already exists: the work is retrieval, and the record documents that the form was found rather than composed. The second group produces a substitute where the target community has no counterpart, or has one that does different work, and the substitute should stay visible as one.

Matched by

Established equivalentRecognized translation

Related entries

Preamble and recital formulae Judicial and procedural formulae Modality formulae in binding text Routine formulae

Fixed wording, treated as fixed

A Translyta delivery distinguishes the wording that was already settled from the wording that was chosen, so a reviser checks the first against its instrument and the second on its merits.

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